The U.S. Supreme Court in a 6-3 decision this morning ruled that the California Department of Justice’s policy of demanding blanket disclosure of donors to 501(c)(3) charities burdened the First Amendment rights of those charities and their donors, and was not narrowly tailored to serve any important government interest.
“This is a major victory for the First Amendment rights of donors,” said Erik Jaffe, Protect The 1st director of policy. “We’ve seen social media being used to ‘dox’ donors on both the right and the left. We’ve seen people lose their reputations, their jobs and be physically threatened. The Supreme Court today took a major step toward reenforcing the protection of donors and members of associations in place since the Court protected the membership list of the NAACP from the State of Alabama in 1958.”
The Court reversed the Ninth Circuit in Americans for Prosperity Foundation v. Bonta (previously Becerra) and the companion case of Thomas More Law Center v. Bonta.
“This result is not only a big win for the First Amendment,” Jaffe said. “But in accepting the facial challenge to the disclosure requirement as a whole it is more protective of First Amendment rights than many observers expected from the Court. Protect The 1st congratulates the petitioners in this case and is pleased and proud to have, along with our friends at Pacific Research Institute, supported them with an amicus brief to the Supreme Court. PT1 is also pleased to have had so many other organizations from all across the ideological spectrum likewise support the petitioners and the First Amendment rights of all organizations and their donors.”
Chief Justice John Robert’s majority opinion was joined in most parts by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. The dissent by Justice Sotomayor was joined by Justices Breyer and Kagan. Various Justices in the majority filed separate opinions disagreeing with some parts of the opinion but agreeing with the result.
In the majority opinion, the Chief Justice noted early on “that ‘[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action,’” citing NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462 (1958). Chief Justice Roberts then proceeded to apply a standard known as “exacting scrutiny” to require a “‘substantial relation between the disclosure requirement and a sufficiently important governmental interest.’” In a portion of the opinion not joined by a majority of the Court, the Chief Justice rejected the use of the more protective “strict scrutiny” standard and declined to make a distinction between election-related cases and other cases that were argued to warrant greater scrutiny. The failure of that portion of the opinion to garner a majority, however, did not alter the result, as the policy being challenged failed even under the weaker “exacting scrutiny” standard.
The other major take-aways from the decision are:
While the various opinions went into far more detail on important subsidiary questions, Protect The 1st will address those in later posts analyzing the case in greater detail. For now, the Court reached a proper and protective result and rejected frivolous claims by the California Department of Justice that boiled down, at best, to the desire for administrative convenience at the expense of First Amendment rights.
As for the concurring opinions, Justice Thomas would have gone further than the Chief Justice’s opinion and applied “strict scrutiny” rather then the more limited “exacting scrutiny” used by the Chief Justice. He also would have placed greater emphasis on the protection for anonymous speech and association, an interest not much discussed in the primary opinion. In the other direction, Justice Thomas expressed skepticism with the Court’s so-called “overbreadth doctrine,” thus seemingly rejecting the Court’s holding that the law is facially unconstitutional and cannot be enforced at all, rather than merely unconstitutional as applied to the specific parties who sued. But as he was the only member of the majority to take that narrower view, there are still five votes rejecting California’s policy on its face.
Justice Alito, joined by Justice Gorsuch, also suggested that “strict scrutiny” would have been the proper standard and would not join the Court’s rejection of that standard in favor of “exacting scrutiny.” But because “the choice between exacting and strict scrutiny has no effect on the decision in these cases, I see no need to decide which standard should be applied,” he wrote.
Finally, Justice Sotomayor, joined by Justices Breyer and Kagan, dissented and would have required case-specific evidence of privacy or chilling concerns. She gave little weight to the evidence in the court below on those concerns in this case, much less in general. She also gave little weight to the concerns about retaliation from the government of California itself, not just from public disclosure. In the end, she would have rejected both the facial and as-applied challenges by applying a variable and weaker means-ends tailoring requirement diluted by the perceived absence of a substantial burden on the charities involved.
“Like the majority, the dissent had further and interesting discussion about subsidiary First Amendment issues that are important to those who follow and litigate such matters,” Jaffe said. “But the overall approach suggested by the dissent would have done much to weaken First Amendment protections for the freedom of association, would have empowered hostile governments to harass and retaliate against their political enemies – whatever side of the political aisle they may be. PT1 is thankful such a First Amendment-destructive approach did not garner a majority.”
This June 15, 2015, file photo shows an encampment belonging to protesters in the Oak Flat area of Superior, Ariz. The mountainous land is also known as Chi’chil Bildagoteel. It’s where Apaches have harvested medicinal plants, held coming-of-age ceremonies and gathered acorns for generations. PHOTO CREDIT: Ross D. Franklin, Associated Press
The Apache-Stronghold is desperately trying to prevent the government from enacting a land swap that would turn over their sacred land, called Oak Flat, to foreign mining interests. If they ultimately lose, land the Apache have held to be a holy site for centuries will be turned into a two-mile wide sinkhole.
Luke Goodrich, vice president and senior counsel at the Becket Fund for Religious Liberty, gave an insightful interview with The Deseret News explaining what courts don’t get about Native American religion.
“If the government took land owned by a Baptist church to build a highway, the Baptists could build another church on the other side of town. For many religious groups, that would be possible. But Native Americans can’t go create a new sacred site on the other side of town. Their religious practices are inherently tied to a specific piece of land.”
Goodrich described the government position as “saying the Apaches who worshipped at Oak Flat for millennia and whose whole identity is tied to that land don’t have a recognizable burden to oppose the government blasting it to oblivion.
“What’s missing from that decision is the fact that it’s only government land because it was taken from the tribes by force. It’s like the court is saying, ‘the government took this land from you back in the 1800s. Therefore, it can now do whatever it wants.’
“There’s often just a remarkably callous disregard of Native Americans and Native American religious practices.”
Can public school officials regulate the off-campus speech of their students?
As Protect The 1st has reported, long-standing precedent from the Vietnam-era Tinker v. Des Moines Independent Community School District ruling held that school officials have a limited ability to regulate on-campus speech if it “substantially interfere[s] with the work of the school.”
But since the Tinker decision, social media has sometimes blurred the boundaries between on-campus and off-campus speech. In Mahanoy Area School District v. B.L., a school removed Brandi Levy, then 14 years old, from the school’s cheerleading squad after she made generous use of a common Anglo-Saxon verb to express her views about her school and sports – underscored with an image of her and a friend making a familiar hand gesture.
A federal district court ruled in favor of the cheerleader in 2019, saying that even if Tinker applied, Brandi Levy’s speech wasn’t sufficiently disruptive to override her First Amendment rights. The U.S. Court of Appeals for the 3rd Circuit, however, went further, holding that Tinker does not apply to off-campus speech at all.
In its 8-1 ruling today, the Supreme Court held that Levy’s speech was protected.
The opinion reads almost like something from The Onion, with justices solemnly weighing in on what was said at the Cocoa Hut convenience store and how ten minutes in an algebra class might have been disrupted by the post. Associate Justice Stephen Breyer wrote for the majority, acknowledging that it might be “tempting to dismiss” the student’s “words as unworthy of the robust First Amendment protections discussed herein.” Justice Breyer added: “But sometimes it is necessary to protect the superfluous in order to preserve the necessary.” Thanks to the Court’s ruling, it is not the place of government officials to decide what speech they deem worthy or “superfluous,” or whether the colorfulness of the expression is necessary or not, polite or uncouth. That is largely the point of “freedom,” after all – the free get to decide those questions for themselves.
The Court’s ruling, however, did not eliminate all potential regulation of off-campus student speech, particularly where the in-school consequences might be more serious, as in the case of cheating, or bullying and threats towards classmates and teachers. But noting that regulating off-campus speech generally involved a lesser interest on the part of the school and imposed a greater burden on students, the Court left for another day the First Amendment rules for regulation of other, more troubling, off-campus speech.
But for now, students are free to express themselves, even with colorful passion, on various issues large and small without fear of school officials’ overly intrusive efforts to police their speech.
And that counts as a win both for students and for the First Amendment.
Protect The 1st filed an amicus brief today at the U.S. Supreme Court in Project Veritas Action Fund v. Rollins opposing a ruling from the U.S. Court of Appeals for the First Circuit. That lower-court ruling upholds a Massachusetts law making it illegal for anyone but law enforcement officers to record others without their consent. The First Circuit, unlike other circuit courts of appeal, ignored the threat such laws pose to First Amendment rights of speech and the press.
“The plaintiff, Project Veritas, is a conservative activist group that you might love, hate or simply want to ignore,” says Gene Schaerr, Protect The 1st general counsel. “But their rights are everyone’s rights. Had this law been in effect in Minnesota, 18-year-old Darnella Frazier would not have been able to film the police and we would never have heard of George Floyd. In fact, she would have ended up in handcuffs instead of receiving a Pulitzer Prize citation.”
The PT1st brief surveys the value of undercover reporting throughout American history, beginning with the work of groundbreaking investigative journalists like Nellie Bly – who posed as a maid to expose abuses by employment agencies in 1887 – and Upton Sinclair, whose work in slaughterhouses prompted President Theodore Roosevelt to sign the Meat Inspection Act in 1906. Undercover practices, used by journalists and citizens alike to gather evidence against governmental and private entities to build support for meaningful policy changes, are now almost entirely illegal in Massachusetts.
There is still a clear public interest in exposing private misdeeds, and the most effective way to sort the innocuous from the genuinely harmful is to protect the flow of information. Whether it’s a Georgia woman exposing inappropriate physical contact from a physician, or a whistleblower gathering evidence about overt racism in the workplace, often the only way to gather meaningful evidence is to record without the offending party’s knowledge where such parties do not have a reasonable expectation of privacy.
Such tactics are often the only defense for the defenseless. In 2014, a disabled 15-year-old special needs boy in a Pennsylvania school secretly used his iPad to record the behavior of bullies tormenting him. Police charged him with illegal wiretapping – the kind of outcome that the Massachusetts law would now endorse.
Even without accounting for the clear public interest in allowing citizens to expose wrongdoing around them, Massachusetts’s law presents several clear dangers to the average citizen of the 21st century. Does the prohibition against recording an individual without consent extend to technology like nanny cams or Ring doorbells? Must a victim of a drunk driver obtain that driver’s permission before sharing a dashcam video with the police? Situations like these are likely not the intent behind the Massachusetts law, but such eventualities – as with the special needs student in Pennsylvania – are inevitable when individual freedoms are curtailed so broadly.
“The Supreme Court should step in and take this opportunity to allow citizens to protect both their interests and the public’s,” Schaerr said. “Massachusetts’s prohibition on recording without consent already clearly violates the First Amendment right of Americans to record public officials performing their duty. However, the Supreme Court should go one step further and make it clear that Americans have the right to record where others lack a reasonable expectation of privacy.”
“Pitchfork” Ben Tillman was a virulent racist who, as governor of South Carolina and as a U.S. Senator in the late 19th century, openly praised the disenfranchisement and lynching of African-Americans. He also capitalized on the anti-Catholic sentiment of the day, angry that Catholic institutions and schools founded by Northern missionaries were serving former slaves.
So Tillman called a new state constitutional convention in 1895 and had drafted for South Carolina a thoroughly racist constitution. He ensured that South Carolina would be one of ultimately 36 states with a “Blaine Amendment.” Riding on a current of anti-Catholic sentiment in 19th century America, the Blaine amendments forbade states from directing funds to independent and religious schools.
Flash forward to the 21st century and the recent coronavirus pandemic. In South Carolina, as elsewhere, parochial and private schools were managing to stay open while many public schools struggled. Nearly three dozen Catholic parochial schools and eight historically Black colleges planned to use access to state grants to provide schooling for more South Carolina children.
They soon learned that no good deed goes unlitigated. When the application by these schools was challenged in state court, what law did the opposing counsel base their case upon?
South Carolina’s Blaine Amendment, put in place by “Pitchfork” Ben.
With a Blaine Amendment in the state’s constitution, the South Carolina Supreme Court ruled that the private schools could not access these grants.
Now the Roman Catholic Diocese of Charleston, which covers 33 K-12 schools, and the South Carolina Independent Colleges and Universities – which represents 20 institutions, including five historically Black colleges and universities – are mounting a federal lawsuit calling for the removal of the Blaine Amendment from the state constitution. They are aided in their lawsuit by the Liberty Justice Center, a public interest law firm in Illinois.
Bishop Robert E. Guglielmone of Charleston announced the lawsuit, which states the Blaine Amendment, “born of bigotry and prejudice, based on race and religion… violates the equal protection and free exercises clauses of the U.S. Constitution.” A victory by these schools would expunge the legacy of “Pitchfork” Ben Tillman and provide a new avenue to quality education for low-income and minority children.
After DOJ Ends “Secret Legal Battle” Against Reporters, Protect The 1st Calls to Make Guidelines Permanent
“This weekend’s announcement by the Department of Justice that it will no longer seize reporters’ records in leak investigations is a win for civil liberties,” said Rick Boucher, senior policy advisor of Protect The 1st. “But it is not nearly enough to protect the flow of information that journalists facilitate.
“The DOJ’s action, unless buttressed by formal guidelines, could easily be reversed by a future administration,” the former Democratic congressman from Virginia said. “We need new formal DOJ guidelines if we are to have a lasting, meaningful protection for freedom of the press.”
Boucher praised President Joe Biden and Attorney General Merrick Garland for acting with alacrity after Charlie Savage and Katie Benner of The New York Times reported Justice Department lawyers had for months fought a secret legal battle to access the email logs of four reporters. DOJ had previously seized these reporters’ phone records.
We need new DOJ guidelines if we are to have a lasting, meaningful protection for freedom of the press.
During the Trump Administration, the government obtained a secret court order to seize phone and email records from CNN Pentagon correspondent Barbara Starr. In the Obama Administration, government lawyers seized phone records from the Associated Press, as well as executing a search warrant for the emails of Fox News reporter James Rosen.
Boucher said Protect The 1st would urge the Biden Administration to “finish the job” by enacting formal Department of Justice guidelines restricting the ability of government prosecutors to access reporters’ records and the identity of confidential news sources.
“The surveillance of journalists is a bipartisan temptation. It demands a bipartisan solution,” Boucher said.
Boucher said Protect The 1st will also push to revive federal legislation, The Free Flow of Information Act, endorsed by President Obama late in his administration, and supported in the past by many Republicans, including Sen. Lindsey Graham. The legislation would provide to journalists a qualified privilege to refrain from revealing confidential news sources.
“Treating a reporter’s sources as a fishing pond should be a no-go,” Boucher said.
When George Will and the ACLU Agree: FTP’s Donor Disclosure Provision Would Expose Donors to Violence
From the right, George Will writes of the “For the People Act,” now before the U.S. Senate, which would increase federal oversight of U.S. elections:
FTP sweeps beyond elections … by requiring disclosure of even small-dollar donors to organizations involved only in issue advocacy, not elections. This is sinister, given the ferocious vindictiveness of today’s virtual mobs, that hound people associated with controversial charges.
Will is critical of the entirety of FTP for extending federal power over elections. But increasingly, many liberals – who do support FTP overall – are coming to agree that the bill is too restrictive of speech and will expose donors to threats.
From the left, in a recent piece by ACLU’s Kate Ruane and Sonia Gill in The Washington Post, they report that in an effort to crack down on “dark money,” the bill could require donor disclosure of “paid political speech that discusses a public issue such as immigrants’ rights, voting rights or reproductive freedom if the communication merely mentions a candidate for public office.”
Ruane and Gill write:
We know from history that people engaged in politically charged issues become political targets and are often subject to threats of harassment or even violence.
These writers, from the left and right, are correctly predicting enormous turmoil and potential violence directed against people across the ideological spectrum if this donor disclosure measure passes.
Protect The 1st has filed an amicus brief before the U.S. Supreme Court in Americans for Prosperity v. Rodriguez to highlight the dangers of forced donor disclosures. In this case, the state of California requires charitable non-profits to report their donors to the state, ostensibly to prevent fraud. The donors’ names are supposed to be kept under lock and key by the state but data has leaked out. In 2009, for example, the California attorney general’s office mislabeled contributions and released them on the internet, including the confidential information of hundreds of donors to Planned Parenthood.
Protect The 1st has reported many instances of people on both the left and right in California having their jobs, businesses and very lives threatened after having their donations revealed. ACLU points to a campaign to force Black Lives Matter to reveal its sources of funding.
Those organizations seeking to aggressively advance civil rights and civil liberties through paid communications about issues of public importance should not be deterred from doing so because the government may force public disclosure of their supporters’ identities.
These writers, from the left and the right, are correctly predicting enormous turmoil and potential violence directed against people across the ideological spectrum if this measure passes. Thousands of organizations that engage in advocacy will be shocked to find themselves hauled up before regulators for not complying with the stringent and invasive demands for information – all in the naïve belief that they have an inherent right as Americans to freely speak out on the issues of the day.
He Told Officers He Would Rather Have His Throat CuT
Protect The 1st has reported on the issue of Muslim, Jewish Orthodox and Sikh men facing resistance to the wearing of beards – a religious obligation in all three faiths – while serving in the U.S. military. Protect The 1st demonstrated that this is a violation of the federal Religious Freedom Restoration Act.
But what about the religious rights of the incarcerated?
The federal Bureau of Prisons, understanding the importance of outward observances in these faiths, permits men to wear beards of any length. Among those who wear beards in prison are Sikh men, for whom keeping one’s hair unshorn is a serious religious obligation. Some states, however, have no awareness or sensitivity to this religious requirement.
In 2020, a Sikh man, Surjit Singh, reported to a reception center operated by the Arizona Department of Corrections. The 64-year-old trucker had been sentenced to five years in prison for reportedly rolling through a stop sign, leading to an accident that claimed a life. Despite Singh’s vigorous protests, correctional officers shaved off his beard. Singh had never cut, shaved or trimmed his hair. He begged the officers to cut his throat instead. Later, when Singh’s beard approached a 1-inch length permitted under Arizona prison rules, correctional officials threatened to shave him again.
This was a plain violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), passed in 2000 by Congress with the understanding that the incarcerated are especially vulnerable to religious discrimination. And whatever their crimes, the incarcerated deserve – and indeed, one could argue they especially need – access to religious practices. Under RLUIPA, Arizona’s correctional officers ignored or were ignorant of a requirement to grant a religious accommodation for Singh’s beard and turban.
ACLU of Arizona, the Sikh Coalition, and law firm WilmerHale, filed a complaint with the U.S. Department of Justice and the Arizona Department of Corrections, Rehabilitation and Reentry for this especially egregious infringement of Singh’s rights. Of the world’s 26 million Sikhs, 500,000 live in the United States, including thousands in Arizona. It is time for Arizona to recognize that federal law requires accommodation with their religion, just as it protects our right to worship, or not worship, as we please.
Collin O’Mara, head of The National Wildlife Federation, sent a letter this week to Attorney General Merrick Garland and Agriculture Secretary Tom Vilsack asking the Biden Administration to discontinue a Trump policy of allowing lands sacred to the Apache to be traded to a foreign mining consortium.
If allowed to continue, the land swap – enacted in a midnight deal by Congress in 2014 – would turn Arizona public lands sacred in Apache religion into a copper mine. The Agriculture Department (which includes the U.S. Forest Service, which oversees the lands in the Tonto National Forest) recently urged the Ninth Circuit Court of Appeals to uphold the land swap.
O’Mara highlighted this recent action with the administration’s stated goals in a Jan. 26 presidential memorandum, “Tribal Consultation and Strengthening Nation-to-Nation Relationships.”
That document, signed by the president, says:
President Biden concludes:
O’Mara notes the history of ignoring Native American concerns. Referring to the sacred lands by their Apache name, O’Mara writes: “There is no better place to start righting these wrongs than Chi’chil Biłdagoteel and no better time than now.”
Oh, When Will They Ever Learn? Once Again, Government Tries to Force Nuns to Pay for Abortions (Round Four)
How many times does the U.S. Supreme Court have to issue a ruling before government officials comply?
Three times the nuns of the Catholic charity Little Sisters of the Poor had to go to the Supreme Court to obtain a ruling that Pennsylvania and the federal government could not require them to provide contraceptives and abortifacients, in violation of their core beliefs. While houses of worship are exempt from this requirement, religious organizations like the Little Sisters of the Poor that provide services to needy people, regardless of faith, were being held to a different standard.
Now it is the turn of many more Catholic and Protestant orders, including the nuns of the Anglican Sisterhood of Saint Mary, to have to petition the court in order to stay true to their faith. The Becket law practice reports that this case arose after the New York State Department of Financial Services also tried to narrow existing exemptions to exclude religious ministries that serve people regardless of faith.
“It’s a perverse standard,” said Gene Schaerr, general counsel of Protect The First. “If an order lovingly reaches out to the suffering, the elderly and the dying of other faiths, they are put under a more restrictive, punitive standard – one that would force them to either violate central tenets of their faith, or abandon their mission.”
Now multiple orders of Catholic and Anglican nuns, Catholic dioceses and Protestant churches are petitioning the Supreme Court in Diocese of Albany v. Lacewell.
Lori Windham, senior counsel at Becket said: “New York’s failure to learn from the Little Sisters’ saga that you can’t make nuns pay for abortions is beyond reason. The Court needs to step in and teach New York that lesson.”
Update: USDA Comes Out Strong in Favor of Oak Flat Copper Mine: Time for Senators Sinema and Kelly to Step Up
Hope that the Biden Administration would reverse course and prevent the sacred lands of the tribes of the Apache Stronghold from being destroyed was diminished this week when the U.S. Department of Agriculture urged the Ninth Circuit to allow a land swap to proceed.
If enacted, the Apache’s sacred land, Chi’chil Bildagoteel – recognized as theirs in an 1852 treaty with the U.S. government – will be transformed into a copper mine by a foreign mining consortium. The result will be a two-mile-wide sinkhole, a thousand feet deep.
The Department of Agriculture, which includes the U.S. Forest Service, has jurisdiction over the land. Protect The First has joined with a number of other organizations dedicated to civil liberties and religious freedom guaranteed by the First Amendment to urge the Ninth Circuit to protect the Apaches’ sacred land.
“We disagree that destruction of our sacred land and stopping our ability to practice our religion are not a ‘substantial burden,’” said San Carlos Apache Tribal Chairman Dr. Wendsler Nosie Sr. “And we disagree that giving away Chi’chil Bildagoteel to a private company, thus subjecting us to criminal trespass arrest for praying on our sacred grounds, is not coercion.”
While the court deliberates, the House Natural Resources Committee has passed legislation introduced by its chairman, Rep. Raúl Grijalva, D-AZ, that would protect this sacred land.
It is now incumbent upon Arizona’s two U.S. Senators, Kyrsten Sinema and Mark Kelly, to take a stand for their constituents and support Representative Grijalva’s bill in the Senate. This is down to the wire – in Congress and in the court. Protect The 1st urges Arizona’s senators to come down on the side of religious liberty, First Amendment rights that are sacred to Americans of all faiths.
Protect The 1st recently filed an amicus brief in the Ninth Circuit supporting the Yakama Nation and the Grand Ronde Tribes following the destruction of their sacred lands. Its brief summarizes principles of religious freedom important to all communities of faith.
In the brief, Protect The 1st argued that a highway enlargement project that destroyed the tribes’ sacred lands substantially burdened their rights under the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause.
For centuries, these Native Americans have revered a scenic site in central Oregon. Ignoring their concerns, the government cut down trees, scattered and removed an ancient altar, unearthed gravesites and killed off medicinal plants. A federal district judge held that the destruction of sacred land did not substantially burden these tribes’ religious exercise under RFRA because it neither deprived the tribal members of government benefits nor subjected them to civil or criminal penalties.
If the Ninth Circuit’s narrow standard for what qualifies as a substantial burden is affirmed, no sacred place will be safe. The rights of these Native Americans are shared by all.
“It’s too late to protect the sacred land of the Yakama Nation and the Grand Ronde Tribes,” said Bob Goodlatte, former House Judiciary Chairman and now Senior Policy Advisor for Protect The 1st. “We can at least persuade the Ninth Circuit to review its narrow standard of what constitutes a burden on the free exercise of religion. This doctrine is being used by lower courts to hold that the annihilation of places of worship are somehow not ‘substantial’ burdens.”
Protect The 1st was joined in its brief by the Jewish Coalition for Religious Liberty, the Sikh Coalition, and the Anglican Church in North America Jurisdiction of the Armed Forces and the Chaplaincy.
“If the Ninth Circuit’s narrow standard for what qualifies as a substantial burden is allowed to stand, no sacred place will be safe,” Goodlatte said. “The rights of these Native Americans are shared by all.”
Protect The 1st is supporting the Apache tribes in a similar challenge to an 11th-hour deal in Congress slipped into the 2015 defense authorization bill to trade their sacred land to a foreign mining company. If that company is allowed to mine copper, the sacred lands of the Apache will be reduced to a two-mile wide sinkhole a thousand feet deep.
“What we’ve seen in Oregon is the tragic result of ambiguity around a single modifier – the word ‘substantial’ – and the inability of courts to see that the destruction of a religion’s sacred site is about as ‘substantial’ as a burden can be,” Goodlatte said. “We hope this case prompts the court to impose a more robust standard that no court can ignore.
“Above all, we are working to see that what happened to the Yakama Nation and the Grand Ronde Tribes does not happen to the Apache tribes of Arizona.”
This week, Senate Minority Leader McConnell spoke for many on the left as well as the right who are concerned about the impact S.1, the “For the People Act,” would have on Americans’ First Amendment rights of speech and association.
The senator said:
“This bill is riddled with a variety of different efforts to give Washington D.C. more control and more power over the free speech of American citizens.
“Some of this is overt. S.1 would give the newly-partisan FEC major new authorities to police the First Amendment speech of citizens and groups, far above and beyond the regulations that are already in place. A lot more speech would get swept under the feds’ umbrella.
“There are also efforts to chill free speech that are more indirect, but still sinister.
“Our nation has a long and important history with the subject of associational privacy.
“The idea is that Americans are free to form private groups around their interests and values — and neither nosy neighbors nor nosy bureaucrats are entitled to know who believes what unless individuals choose to go public.
Americans are free to form private groups around their interests and values — and neither nosy neighbors nor nosy bureaucrats are entitled to know who believes what unless individuals choose to go public.
“In 1958, the NAACP took this issue all the way to the Supreme Court and won a landmark case against the state of Alabama.
“More than 60 years ago, folks understood that when the government tries to force private organizations to publicize their supporters, the First Amendment is the biggest loser.
“Our current, hyper-politicized climate is the last time we can afford to forget these lessons.
“In a world where Americans with unfashionable views are subjected to online harassment… where strangers come after people’s employment for expressing views… the same privacy rights that the NAACP fought for 60 years ago remain paramount.
“That’s why my First Amendment and privacy concerns with so many parts of this bill have been echoed by folks that might surprise you.
More than 60 years ago, folks understood that when the government tries to force private organizations to publicize their supporters, the First Amendment is the biggest loser.
Our current, hyper-politicized climate is the last time we can afford to forget these lessons.
“In a recent Washington Post op-ed, lawyers from the liberal American Civil Liberties Union warned that aspects of the bill before us, quote, ‘could directly interfere with the ability of many to engage in political speech about causes that they care about and that impact their lives.’”
Protect the 1st's senior policy director and former congressman, Rick Boucher, and our policy director, Erik Jaffe, write in the Wall Street Journal on how all of our religious liberties are at stake in a copper-mining plan that threatens a sacred Apache site.
Protect The 1st's policy director, Erik Jaffe, joined The Federalist Society in a discussion on Americans for Prosperity Foundation v. Becerra that involves donor disclosure, freedom of speech, and the First Amendment.
Becket Fund's video shows in terms both stark and touching what is at stake for the Apache people in the Oak Flat decision.
The Supreme Court heard oral argument yesterday in Mahanoy Area School District v. B.L., a case asking whether public school officials can regulate their students’ off-campus speech. The case arose after a cheerleader one Saturday posted a Snapchat message with a picture of her and her friend raising their middle fingers captioned, “F*** school f*** softball f*** cheer f*** everything.” For this, she was removed from the cheerleading team for the year.
This isn’t the first time the Supreme Court has addressed students’ rights. In Tinker v. Des Moines Independent Community School District it held that, although students have First Amendment rights, schools can punish on-campus speech that “substantially interfere[s] with the work of the school.” In today’s case, the school board argued that Tinker should extend to off-campus speech because “students’ ubiquitous access to the Internet and social media have blurred any on-campus/off-campus distinction.”
The justices recognized that this is a difficult question, but ultimately seem likely to side with the cheerleader. Some justices suggested that even if Tinker applied off campus, the cheerleader’s conduct didn’t meet its standard:
Justice Barrett seemed to side fully with the cheerleader. She instructed Lisa Blatt, the school district’s attorney, to “assume … that high school students enjoy the same free speech rights as everyone else,” and told Blatt there was not a “lot of doctrinal support for saying that Tinker applies” off campus.
Other justices seemed unfriendly to the cheerleader’s position. Justice Thomas agreed that “if it’s on social media, where you post it … doesn’t really matter.” These posts, he recognized, could happen anywhere: “[H]ow would that make any difference, where you post it?”
Chief Justice John Roberts likewise expressed skepticism of the cheerleader’s position. He wondered whether her argument means that, “no matter how disruptive a particular speech activity off campus … is to the school, it has no choice but to tolerate that because it can’t take any action against the student.”
This case could go one of several ways. Tinker could apply generally, but not allow the school to punish the cheerleader’s conduct. Alternatively, it could apply both generally and allow the school to punish the cheerleader for her post. The most speech-protective option, and the outcome Protect The 1st endorses, would be a holding that Tinker does not apply off campus, and that off-campus speech is fully protected by the First Amendment.
Unfortunately, because of the justice’s divergent questions, the oral argument left more questions than it answered. Protect The 1st hopes the Court recognizes that the state’s power to control speech faces full First Amendment protection outside the schoolhouse gate. We expect an opinion in June and will report back then.
Americans for Prosperity v. Rodriguez: Justices Pose Tough, Skeptical Questions About California Donor Law
The Supreme Court heard oral argument today in Americans for Prosperity v. Rodriquez. The case asks whether California can, consistent with the First Amendment, require all charities doing business in the state to disclose to the state Attorney General a list of their donors. Protect The First (PT1st), together with the Pacific Research Institute, filed a brief earlier this year that argued that the California requirement violates the First Amendment by chilling the speech of would-be donors.
The justices’ questions suggest the Supreme Court understands and agrees with PT1st’s brief. Justices Sotomayor and Kagan both seemed to agree that California violated—at the very least—the First Amendment rights of the petitioners challenging the law. Sotomayor, for example, recognized that it was “without dispute … that a disclosure of their donors would harm them.” Sotomayor then echoed one of the central themes of PT1st’s brief: Even though California promises to keep the disclosed information private, there is a “human fear” that such information, which is uploaded to an online database, will be hacked.
Justice Kagan, for her part, emphasized the district court’s findings that California had (1) a history of inadvertent disclosure and (2) that petitioner’s donors would face threats and harassment if their affiliations were disclosed. Because such findings are reviewed for clear error, a very deferential standard, Justice Kagan had no choice but to ask, “How can you win on the as-applied challenge?” In other words, doesn’t the history and facts of this case render it constitutionally suspect, at least in respect to the petitioners? It is hard to imagine a question that serves as a better tell for how a justice is approaching a case.
Other justices seemed likely to go even further and find that the California disclosure regime is facially unconstitutional, meaning that it violates the First Amendment in any context:
It is never wise to bet on how the Court will decide a case. But the justices’ questions suggest the Court will likely find the California scheme unconstitutional, at least as applied to the petitioners, because of the risk of threats and harassment that they proved at trial.
That itself would be a win.
The questions of multiple justices, however, suggest that the Court might go further and provide relief to all charities by finding the law unconstitutional on its face.
PT1st remains hopeful the Court will provide an opinion that either expressly or implicitly invalidates California’s scheme. We expect an opinion in late June, and will report back then.
Why would a U.S. sailor contest an order to shave off his beard?
When it is “a religious requirement and an expression of obedience and fidelity to God,” according to the testimony of Electrician’s Mate (Nuclear) 3rd Class Edmund Di Liscia, a Hasidic Jew aboard the aircraft carrier Theodore Roosevelt, now on duty in the Pacific.
Di Liscia had obtained a religious accommodation to wear his beard while in uniform. When his ship’s command overruled that accommodation, Di Liscia obtained a court order from a federal judge for a temporary stay. The sailor submitted testimony saying the order to shave was “extremely humiliating and deeply jarring to my psyche and soul.”
The Becket Fund for Religious Liberty, which supports the rights of service personnel to observe their religion, argued that the order is a violation of the Religious Freedom Restoration Act. Becket is also representing Mass Communications Specialist 3rd Class Leo Katsareas, a devout Muslim who wishes to retain his beard while serving in the U.S. Navy.
Safeguarding the free exercise of religion for military personnel is a key concern of Protect The 1st. We believe that Americans of many faiths, from Muslim women seeking to wear a hijab, to Sikhs who want to wear a kirpan (a small, ceremonial sword) or a kara (religious bracelet), to members of other faiths – all have shown they can both be true to their religion and serve our country with honor and distinction.
When the U.S. Chamber of Commerce and the American Civil Liberties Union both warn of severe unintended consequences of a legislative provision, perhaps it is time to hit the ‘pause’ button.
The Chamber took a broad position against H.R. 1, which passed the House on a party-line vote and is now before the Senate. Among the many reasons the Chamber opposes this bill is its impact on political speech and donor privacy.
“H.R. 1 would also usher in a host of onerous disclaimer requirements for those engaging in communications that mention a candidate or elected official, even if those communications are related to legislative issues.”
The ACLU supports many of the provisions of H.R. 1, but spells out why the donor disclosure provision is so problematic. Writing in The Washington Post, ACLU senior legislative counsel Kate Ruane, wrote:
“We know from history that people engaged in politically charged issues become political targets and are often subject to threats of harassment or even violence. This should be gravely concerning in light of the rise in white supremacist violence that has brazenly targeted private citizens and public officials alike. Moreover, in the time of social media, there is heightened interest in who is supporting these efforts.”
Conservatives and liberals can disagree over the merits of H.R.1’s many provisions. But civil libertarians of all stripes see a danger when donors are exposed to doxing by the government, and the abuse, threats and intimidation that can result from that.
Americans for Prosperity Foundation v. Rodriguez asks the Supreme Court whether California can require charitable non-profits to disclose their donors before operating in California.
Protect The 1st and The Pacific Research Institute recently filed an amicus brief in this case. There, we demonstrated that the same right of confidentiality that the Supreme Court recognized in NAACP v. Alabama (1958) should apply to donors of all groups, equally.
Eight organizations have since filed amicus briefs supporting California’s regulation. Most of them are a variation on a theme: When it comes to the exposure and harassment of donors, there’s nothing to see here, folks, so move along now.
A group of legal historians, for example, filed a brief arguing that the record here “does not contain the overwhelming evidence mustered in the civil rights-era cases that providing list of members would likely lead to public disclosures and to real physical harm.” Another brief from a coalition of U.S. senators argues that “[t]here is simply no comparison between the violent oppression faced by individual members of groups supporting racial justice in the South in the Jim Crow 1950s and the lofty power enjoyed by the country’s secretive donor elite today.”
Briefs filed by other groups attempted to undermine the risks to privacy by arguing that, even though there were some lapses in confidentiality, they have been resolved. To them, the risk of harm is, at best, “speculative.”
These groups miss the point, and are wrong in any event. Examples from California itself show that the fears would-be donors have about donating are not speculative, but are instead logical responses to real harms. In 2009, for example, the California attorney general’s office mislabeled contributions and released them on the internet, including the confidential information of hundreds of donors to Planned Parenthood.
“California data security is demonstrably weak and hackable,” says Gene Schaerr, general counsel of Protect The 1st. “But even if donor identification is never revealed, a chilling effect still occurs when this information is available to powerful and ambitious politicians. Just the knowledge that a donor’s name may be misused – publicly exposed in a hack, or privately in a disclosure to a politician or regulator – would be enough to stifle speech.”
He continued, “These briefs are right to assert that there is no comparison between a donor to the NAACP in the Jim Crow era and a donor today. But one doesn’t have to face the worst possible threat to be intimidated. There has been no shortage of recent examples of people being threatened in our era of ‘cancel culture’ and ‘doxing.’”
Schaerr cites a list of recent “doxing” incidents in which the combination of a donor’s name and address, when combined with location devices and data from social media, led to harassment of donors, from abortion providers, to opponents of same sex marriage, to members of Black Lives Matter.
“Donors don’t have to face the same level of intimidation as the members of the NAACP to be scared away from exercising their core First Amendment rights,” Schaerr said. “With all of the risks that come with donor disclosure, there is ample reason to apply NAACP’s rule in this context, and thereby protect the First Amendment freedoms of association and speech from burdensome disclosure requirements.”
Protect The 1st Brief on Apache Oak Flat Case: Ruling Misinterprets RFRA, Precedents, and Congressional Intent.
Protect The 1st filed an amicus brief today before the federal Ninth Circuit Court of Appeals on behalf of Apache tribes seeking to stop a land swap that would allow Resolution Copper, a foreign mining group, to destroy sacred tribal lands.
The Apache are appealing a ruling by the U.S. District Court for Arizona that found that the land swap, which would allow mining companies to transform sacred Apache lands into a two-mile-wide sinkhole, would not – somehow – amount to a substantial burden of the Apache’s free exercise of religion.
Joining with the Jewish Coalition for Religious Liberty, the International Society for Krishna Consciousness, The Church of Jesus Christ of Latter-Day Saints, and the Sikh Coalition, Protect The 1st wrote that the district court misinterpreted the Religious Freedom Restoration Act (RFRA), as well as a precedent, Navajo Nation v. U.S. Forest Serv.
“While, on its surface, this case concerns Native American religious rights,” the amici declared, “the district court’s erroneously narrow standard for what qualifies as a substantial burden under RFRA will harm Jewish, Muslim, Sikh, Buddhist, Hare Krishna, Christian and all manner of religious communities, organizations and individuals.”
The district court’s findings of fact for the Apache run directly against the court’s ruling. That court recognized that:
Thus, the court ruled that the destruction of a sacred religious site – held in trust by the U.S. government for the Apaches since 1852 – would have a devastating effect on the Apache people’s religious practices … without burdening their exercise of religion.
The brief noted that if upheld, this ruling will have a general applicability: “At least the district court’s parsimonious view of substantial burdens does not discriminate among faiths—all will suffer.”
The brief assailed the logic of the district court, which did not count the annihilation of Apache sacred land as a “substantial burden” because the government had neither denied a government benefit to nor imposed civil or criminal penalties upon the Apache.
In response, the amici write that “the district court ignored that there are other ways, including the governmental plan to have Oak Flat mined into destruction, for religious exercise to be thus burdened.”
The brief quotes then-Judge (now Justice) Neil Gorsuch: Whenever the government “prevents the plaintiff from participating in a [religious] activity,” giving the plaintiff no “degree of choice in the matter,” that action “easily” imposes a substantial burden on religious exercise.
The amici also criticized the district court’s reliance on a precedent, Navajo Nation, in which the plaintiffs objected to the government’s use of treated wastewater to make snow on a sacred mountain. The court upheld that it did not substantially burden tribe members’ exercise of religion.
“But this artificial snow would not physically affect, let alone destroy, the area: As the Court took care to note, ‘no plants, springs, natural resources, shrines with religious significance, or religious ceremonies . . . would be physically affected … no plants would be destroyed or stunted; no springs polluted; no places of worship made inaccessible, or liturgy modified.”
The brief noted the vast difference between the application of artificial snow and the complete destruction of a site.
In sum, the amici told the Ninth Circuit that the district court ruling misinterprets the clear meaning of the Religious Freedom Restoration Act, as well as Supreme Court and other precedents, and ignores the clear intent of Congress.
The San Carlos Apache and other tribes in Arizona won a reprieve of sorts when the U.S. Forest Service, part of the U.S. Department of Agriculture, recently announced it would restart its consultation with the tribes before publishing an environmental review. This review could block or clear a land swap that would result in the destruction of the tribes’ sacred land widely known as Oak Flat in the Tonto National Forest.
Now Arizona Gov. Doug Ducey has intervened, asking the Department of Agriculture to reverse its decision to freeze the land swap, enabling foreign mining interests to mine the land.
If the project moves forward, the Apache’s sacred land, where the tribes pray and hold ceremonies, will be transformed into a 2-mile-wide crater.
“This case at the very least shows that the Arizona government’s respect for the Religious Freedom Restoration Act is spotty at best in its application to smaller and less politically connected religious minorities,” said Protect The 1st general counsel Gene Schaerr. “If this act, which protects religious freedom as guaranteed by the First Amendment, is trashed for one group, ultimately it can be trashed for all groups.”
When a corporate political action committee makes a campaign donation to a candidate or party, it is required to report those donations to the Federal Election Commission. Most would agree that is as it should be. Now the acting chair of the Securities and Exchange Commission proposes to require businesses to disclose their contributions to think tanks, trade groups and other advocacy or public policy organizations that speak out on issues.
Just as Protect The 1st is concerned about individuals being harassed for their speech and contributions, so, too, are we concerned about harassment of businesses that exercise their right to speech. One need only have a passing acquaintance with the news to see how just the threat of boycotts, cancellations, and “doxing” of individual executives could chill the First Amendment rights of businesses. Two decades ago, the executives and their spouses of a medical research company in the United Kingdom were viciously attacked, both in terms of reputation (some were publicly advertised as prostitutes, with their home addresses given out) and physically beaten after being doxed by extreme animal rights activists.
The world has not become any kinder since that happened.
The SEC proposal is part of a wave of attempts to control or punish speech. H.R. 1, now before the Senate, has some donor reporting requirements that would place organizations at risk of speech-chilling actions by those opposed to their views. The Supreme Court is now reviewing the supposedly confidential donor reporting requirements of the California Attorney General, despite a history of that office suffering massive data breaches.
The rationale of the U.S. Supreme Court in protecting the privacy – and thus, safety – of supporters of the NAACP should extend to everyone. Privacy protects speech. If we erode the First Amendment rights of corporate executives, don’t be surprised if we start to see erosion in protections for the rest of us.
In principle, the Equality Act – the subject of a Senate Judiciary Committee hearing on Wednesday – should be a welcome final affirmation that LGBTQ Americans enjoy the same civil rights as all Americans. It would amend the 1964 Civil Rights Act to forbid discrimination on the basis of sex, sexual orientation, and gender identity in areas ranging from employment, to credit, to housing.
During the Senate Judiciary Committee hearing, however, witnesses highlighted problematic provisions that could encroach on the First Amendment religious liberties of other Americans in the name of civil rights.
The hearing revealed the need to fully codify the rights of LGBTQ Americans in all major dimensions of American life. But it also revealed that the Equality Act would expand the definition of public accommodation under civil rights law to include any church, temple or mosque that provides a social service, from protecting battered women to providing soup kitchens for the homeless.
This provision presents a multitude of thorny issues. Would the Equality Act forbid the gender separation of people by sex in the traditional ways practiced by Orthodox Jews and Muslims? Would it require Catholics and evangelical Christians to provide health services that conflict with their pro-life views?
After some partisan fireworks, Sen. Thom Tillis (R-NC) ended on a welcome note of potential cooperation with committee Chair Dick Durbin (D-IL).
“Even in 2021 our LGBTQ friends and family regularly still face discrimination – from employment, health care, housing, homelessness,” Sen. Tillis said. “This is wrong in any aspect.”
Sen. Tillis also noted that there are “serious and legitimate issues” in which “desperate and in some cases competing interests” are unnecessarily pitted against one another by the Equality Act.
“Freedom of religion and the free exercise of faith is our most important and sacred Constitutional right,” he said. “It is literally why this nation was founded.”
Then he said, “I want to find a compromise that prevents discrimination against anybody in the LGBTQ community, any American. But I also want to protect Americans’ faith … I am afraid that if we don’t get this right, we could on the one hand make progress but create polarization that could create future polarization on this issue.”
Chairman Durbin wrapped up the hearing by thanking Sen. Tillis for his suggestion that the two sides work together to find an acceptable compromise. “Wouldn’t it be refreshing if we had a constructive, non-confrontational conversation about our mutual concerns?”